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United States v. Henderson

United States District Court, N.D. Ohio, Western Division

June 29, 2017

United States of America, Plaintiff
Arvel Ray Henderson, II, Defendant



         This matter is before me on the government's motion to consolidate two cases for trial - United States v. Wittenmyer, case number 3:14-cr-89, and United States v. Henderson, case number 3:16-cr-285. (Henderson, Doc. No. 13).[1] The parties have fully briefed the issue. (Henderson, Doc. Nos. 13, 14, 20-22). For the reasons that follow, I find these cases unsuitable for consolidation.


         On February 18, 2014, the government filed a criminal complaint against Defendant Arvel Ray Henderson, II and co-defendant Mark Wittenmyer, alleging money laundering in violation of 18 U.S.C. § 1956(a)(1)(B)(i). (Wittenmyer, Doc. No. 1). Wittenmyer was indicted on March 11, 2014, on charges of conspiracy to commit wire fraud, wire fraud, and money laundering. (Wittenmyer, Doc. No. 13). Henderson was not indicted at that time. (Id.). The government filed a superseding indictment on May 14, 2014, charging four additional individuals and adding numerous charges. (Wittenmyer, Doc. No. 40). Again, Henderson was not named in the indictment. (Id.). On May 29, 2015, the government moved to dismiss the complaint against Henderson. (Wittenmyer, Doc. No. 23). The motion was granted on June 1, 2015. (Wittenmyer, Doc. No. 24).

         On June 3, 2015, the government filed a second superseding indictment as to all the defendants, this time charging Henderson with one count of conspiracy to commit money laundering and five counts of engaging in monetary transactions in property derived from specified unlawful activity. (Wittenmyer, Doc. No. 103). All defendants except Henderson have since pled guilty or been voluntarily dismissed by the government.

         On September 6, 2016, the government indicted Henderson in a separate action, charging one count of theft of public money and two counts of bankruptcy fraud. (Henderson, Doc. No. 1). The government filed a superseding indictment on January 30, 2017, charging one count theft of public money, one count concealment of bankruptcy assets, and one count bankruptcy fraud. (Henderson, Doc. No. 18).


         Under Federal Rule of Criminal Procedure 13, I “may order that separate cases be tried together as though brought in a single indictment or information if all offenses and all defendants could have been joined in a single indictment or information.” Separate offenses may be charged in the same indictment if those offenses “are of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan.” Fed. R. Crim. P. 8(a). Joinder under Rule 8(a) is permissive, and “[t]o the extent that it is consistent with providing the defendant with a fair trial, the Rule is to be construed liberally to promote the goals of trial convenience and judicial efficiency.” United States v. Wirsing, 719 F.2d 859, 862-63 (6th Cir. 1983).

         The propriety of joinder is “determined by the allegations on the face of the indictment.” United States v. Chavis, 296 F.3d 450, 456-57 (6th Cir. 2002). If the counts to be joined are “logically related, and there is a large area of overlapping proof, joinder is appropriate.” United States v. Graham, 275 F.3d 490, 512 (6th Cir. 2001) (citing Wirsing, 719 F.2d at 863) (internal quotation marks omitted).


         The government asks that I consolidate these two cases, claiming the charges are both “of the same or similar character” and “parts of a common scheme or plan.” (Henderson, Doc. No. 20 at 1); see Fed. R. Crim. P. 8(a). The government also claims Henderson will suffer no prejudice should 1 consolidate these cases. (Henderson, Doc. No. 20 at 13).

         Henderson argues the cases cannot be joined under Rule 8(a), because the individual charges allege unrelated transactions, and the government need not prove one charge in order to prove any other charge. (Henderson, Doc. No. 21 at 5-6). Henderson further argues he will face prejudice if the cases are consolidated. (Id. at 2).

         I find impermissible the consolidation of these two cases. It is true, as the government contends, that Henderson's business account, PNC account 4617, “is the focal point of his [alleged] conduct” in Wittenmyer. (Henderson, Doc. No. 13 at 7). The government alleges Henderson used his account 4617 to receive separate wire transfers of $499, 980 and $130, 000 in fraud proceeds in furtherance of the money laundering conspiracy. (Wittenmyer, Doc. No. 103 at ¶¶ 96, 97a[2], & 98). The government then alleges Henderson withdrew or spent money from this account for his and Wittenmyer's use on six different occasions. (Id. at ¶¶ 99-101, 103-04, & 106). Finally, the government alleges Henderson transferred $23, 000 from account 4617 into another of his accounts, PNC account 8488, and then transferred $50, 000 from account 8488 into his SunTrust account 4724. (Id. at ¶ 106).

         But the overlap between these charges and those brought in the Henderson indictment is small. Count one of the Henderson indictment, theft of public money, arises out of an alleged scheme to defraud the United States Department of Housing and Urban Development. (Henderson, Doc. No. 18 at ¶¶ 7-16). The government alleges no connection between this scheme and the money-laundering scheme in Wittenmyer. The only ...

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